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Info Source Bulletin Number 30

Canadian Imperial Bank of Commerce v. Chief Commissioner, Canadian Human Rights Commission

Indexed as: Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission)

File Nos.:	T-1941-04
Reference:	2006 FC 443
Date of decision:	April 24, 2006
Before:	Blanchard J.
Section of ATIA / PA:	*Ss. 2(1), 4(1), 6, 16(1)(c), 16(4), 19, 20(1)(b), 20(1)(c), 24, 25, 44, 53 Access to Information Act* (ATIA); s. 3 Privacy Act (PA)**
Other statute:	Employment Equity Act, S.C. 1995, c. 44, ss. 5, 9(3), 18(1), 19, 22, 23(1), 34

Abstract

S. 44 ATIA application for judicial review against decision to release CHRC's final report on employment equity compliance
Fact that request for final report not made in writing not nullifying decision of CHRC to release report and CHRC not functus officio when deciding to release report
Final report "under the control" of CHRC
No breach of procedural fairness
Failure by CIBC to demonstrate that disclosure of final report could be injurious to future employment equity compliance review audits pursuant to para. 16(1)(c) ATIA
Except for two passages, final report not exempt from disclosure under para. 20(1)(b) as not objectively confidential
No evidence of reasonable expectation of probable harm pursuant to para. 20(1)(c) ATIA
Final report not containing personal as information insufficient to reveal identity of individuals despite small number of individuals

Issue

(1) Is the decision of the CHRC void because no written request was made for access to the Final Report and was the CHRC functus officio with respect to the Final Report?

(2) Is the Final Report "under the control" of the CHRC and thus subject to the ATIA?

(3) Did the CHRC breach procedural fairness by failing to provide the CIBC with a meaningful opportunity to participate in the proceeding?

(4) Is information in the Final Report exempt from disclosure under para. 16(1)(c) of the ATIA?

(5) Is information in the Final Report exempt from disclosure under para. 20(1)(b) of the ATIA?

(6) Is information in the Final Report exempt from disclosure under para. 20(1)(c) of the ATIA?

(7) Is information in the Final Report exempt from disclosure under s. 19 of the ATIA?

(8) If any part of the Final Report is exempt, can the non-exempt information be reasonably severed and disclosed?

Facts

The Canadian Imperial Bank of Commerce ("CIBC") was the subject of an employment equity compliance review audit conducted by the Canadian Human Rights Commission ("CHRC") pursuant to the Employment Equity Act (the "EEA").

Upon reception of a written request under the ATIA for the "Interim" CIBC Employment Equity Report, the CHRC informed the CIBC and provided the notice to third party in conformity with the ATIA. The CIBC opposed the release of the Interim Report on the grounds of the application of the statutory privilege of s. 34 of the EEA and para. 20(1)(b) of the ATIA-confidential commercial information. Taking the representations made by the CIBC into consideration, the CHRC decided to withhold the Interim Report in its entirety on the basis of para. 20(1)(b) and informed the CIBC of this decision.

The written request for access was followed, some two years later, by a verbal request for access to the "Final" CIBC Employment Equity Report. The CHRC informed the CIBC and provided the notice to third party in conformity with the ATIA. The CIBC opposed the disclosure of the Final Report on the same grounds as those invoked for the Interim Report, and provided the CHRC with a copy highlighting the passages it considered exempt under para. 20(1)(b) of ATIA. The CHRC subsequently informed the CIBC of its intention to release the entire Final Report. Two days after that notice, the CHRC informed the CIBC that its decision not to release the Interim Report was based on para. 16(1)(c) of the ATIA, and not on para. 20(1)(b) of the ATIA as previously indicated.

The CIBC seeks judicial review, under s. 44 of the ATIA, of the decision of the CHRC to release the Final CIBC Employment Equity Compliance Report.

Decision

The application for judicial review was allowed in part only. The CHRC was entitled to receive costs in accordance with the federal court rules. Affidavits and other documents filed on a confidential basis were to remain sealed.

Reasons

Standard of Review

The Court applied the standard of correctness to review the CHRC's decision to disclose the Final EEA Report of the CIBC.^[9] In light of the caselaw on s. 44 and taking into account subs. 2(1) of the ATIA, the Court conducted a hearing de novo and considered the new evidence raised by the parties with respect to para. 20(1)(b). It also heard the additional grounds and evidence against disclosure raised by the third party in its s. 44 application, that is paras. 20(1)(c), 16(1)(c) and s. 19 ATIA.

Issue 1: Is the decision of the CHRC void because no written request was made for access to the Final Report and was the CHRC functus officio with respect to the Final Report?

The Court found that the decision was not void and that the CHRC was not functus officio when rendering its decision. That being said, the CHRC did not commit a reviewable error by accepting the second oral request as sufficient to engage its jurisdiction under the ATIA (noting, however, that it would have been desirable to have a second written request made for the Final Report). The requester's failure to comply strictly with s. 6 of the ATIA did not render the CHRC's decision void since the primary purpose of s. 6 of the ATIA is to ensure that a request for access is sufficiently detailed to allow the institution to readily identify the records. Accepting the oral request, in the circumstances, satisfied the spirit of the ATIA and, in any event, the deficiency would have been easily cured by the requester filing a written request. The Court was also of view that the CHRC was not functus officio in its decision to release the Final Report. The CHRC rendered two separate and distinct decisions, based on two separate and distinct requests.

Issue 2: Is the Final Report "under the control" of the CHRC and thus subject to the ATIA?

The Court concluded that the Final Report was under the control of the CHRC, who had jurisdiction to make a decision on a request for its access. The Court rejected the CIBC's argument that because the Final Report fell within the "statutory privilege" of s. 34^[10] of the EEA, it could not be disclosed without its written consent. In reaching its conclusion, the Court confirmed the broad and purposive approach adopted in the caselaw regarding the interpretation of the meaning of "under the control" and held that, in general, it was sufficient that the record be "in possession of the government".

Issue 3: Did the CHRC breach procedural fairness by failing to provide the CIBC with a meaningful opportunity to participate in the proceeding?

The CHRC informed the CIBC, after its decision had been made to release the Final Report, that the previous decision to withhold the Interim Report was based on para. 16(1)(c) of the ATIA and not on para. 20(1)(b) ATIA. The CIBC argued that it was denied "sufficient information to permit meaningful participation" with respect to the Final Report (since it made essentially the same arguments as the ones made with respect to the Interim Report) and that, as a result, the CHRC had breached procedural fairness and that the decision to disclose the Final Report should be invalidated on that basis. The Court disagreed and found that the CIBC had been provided with a meaningful opportunity to participate in the proceeding through the notification process of ss. 27 and 28 of the ATIA. The CIBC could not rely on similarities between the Interim Report and the Final Report to make the same arguments for both since, in the opinion of the Court, both reports were quite different in substance. The Court noted that the CIBC did not suggest how its submissions would have been different if they had been made on the basis of para. 16(1)(c) rather than para. 20(1)(b) of the ATIA.

Issue 4: Is information in the Final Report exempt from disclosure under para. 16(1)(c) of the ATIA?

The Court concluded that in the treatment of the discretionary exemption under para. 16(1)(c) of the ATIA, two questions had to be considered. First, whether the Final Report fell within the ambit of para. 16(1)(c), and second, whether the head of the government institution properly exercised his/her discretion.

With respect to the first question, the Court found that the compliance review audit was a "lawful investigation" for the purposes of para. 16(1)(c) ATIA. The audit constituted an "investigation" within the meaning of subs. 16(4) as it pertained to the administration and enforcement of the EEA and was authorized by subs. 23(1) of the EEA. Applying Lavigne's broad interpretation of "investigation", it acknowledged an expansion of its scope to cover both ongoing and future investigations. ^[11]

With respect to the second question, the Court, viewing the principles of Lavigne to be applicable, found that there needed to be a clear and direct connection between the disclosure of the specific information at issue and the injury alleged. The Court found that the CIBC had failed to establish a confident belief or a reasonable basis that the disclosure of the Final Report could be injurious to future employment equity compliance review audits. Therefore, there was no basis to exempt the Final Report under para. 16(1)(c) ATIA.

Issue 5: Is information in the Final Report exempt from disclosure under para. 20(1)(b) of the ATIA?

The Court found that, with the exception of two passages, the Final Report was not exempt from disclosure under para. 20(1)(b) of the ATIA.

(1) Whether the information was commercial. The Court held that human resources information was "commercial" information. In the Court's view, there is no single element more important than human resources for a commercial enterprise and its operations.

(2) Whether the information was confidential. The three indicia of confidentiality are: first, whether the information is not publicly available – it was apparent here that much of the CIBC's workforce data in the Final Report was already available to public, although presented differently; second, whether there is a reasonable expectation of non-disclosure--here the CIBC knew that any information provided to the CHRC was subject to the ATIA, therefore it was not reasonable for the CIBC to expect that such information would remain confidential pursuant to s. 34 of the EEA; and third, whether public benefit was fostered by maintaining confidentiality--here the Court believed that there was a public benefit in making transparent the performance of employers in meeting their statutory requirements under the EEA. Aside from two passages, the remainder of the information in the Final Report was found not to be objectively confidential.

(3) Whether the information was supplied to the CHRC by the CIBC. The Court held that information clearly emanating from the third party satisfied that criteria. Such a narrow construction of the word "supplied" was consistent with the overriding purpose of the ATIA which is to make information under the control of a government institution accessible to the public.

(4) Whether the information was treated consistently as confidential. Nothing in the CIBC's undertaking of confidentiality vis-à-vis its employees nor in the evidence before the Court suggested that CIBC's employees would have expected that the aggregate of their responses, once compiled, were to be kept confidential. Indeed, the aggregated workforce data were already publicly available through the annual workforce reports submitted to the Minister by the CIBC under the EEA.

The Court concluded that, with the exception of two passages, the public policy consideration underlying the purpose of the ATIA (i.e that government information should be available to the public) outweighed the evidence in support of the applicability of the para. 20(1)(b) exemption.

Issue 6: Is information in the Final Report exempt from disclosure under para. 20(1)(c) of the ATIA?

The Court concluded that the information in the Final Report was not exempt from disclosure under para. 20(1)(c) of the ATIA because the CIBC had not satisfied the requirements of the mandatory exemption. In the opinion of the Court, the CIBC did not show that there was any link between the disclosure of the information in the Final Report and probability of harm should disclosure occur. The Court found the evidence presented to be insufficient, only speculative assertions.

Issue 7: Is information in the Final Report exempt from disclosure under s. 19 of the ATIA?

While "personal opinions" may qualify as "personal information" under s. 3 of the Privacy Act, the opinions at issue could not be linked nor attributed to any specific individual. They represented a collective opinion of a group of visible minority senior managers who had self-identified for the purposes of the audit. The Final Report reveals neither the number of visible minority senior managers interviewed for the "opinions" nor the total number of visible minority senior managers in the employ of the CIBC. The Court held that the information was insufficient to reveal the identity of the speakers even if the total number of visible minority senior managers working at the CIBC at the time was small.

The Court held the same view with respect to certain data which listed the number of persons from each designated group in the different occupational groups of the CIBC. To extrapolate the identity of any specific employee from the data would require additional information about the CIBC's employees which is not contained in the Final Report.

This was not a case where information about a small group constituted personal information. As a result, the Court found that the Final Report did not contain any personal information exempted under s. 19 of the ATIA.

Issue 8: If any part of the Final Report is exempt, can the non-exempt information be reasonably severed and disclosed?

The Court found that the two passages of the Final Report that could be exempted from disclosure could easily be severed from the non-exempted information, pursuant to s. 25 of ATIA. The Final Report could therefore be disclosed in its entirety, with the exception of the two passages.

Comments

The CIBC is appealing the decision.